Balancing LGBT+ Rights with Religious Liberty

Originally published in the Human Wholeness and Suffering (Spring 2019) issue

The movement to promote LGBT+ rights has produced well-deserved victories that have enhanced both freedom and equality in American society. The discrimination still suffered[1] by many in the LGBT+ community has had devastating effects on their health, dignity and economic well-being,[2] and activists are right to push for legislation that would protect LGBT+ individuals from discrimination. However, concerns by religious Americans (many of whom are Christian) about how such legislation could threaten their religious liberty have tragically been dismissed as “homophobic.” This intolerance towards religious individuals has the potential to erode America’s status as a beacon of religious freedom. Religious liberty has been an enduring American virtue, as evinced by its Constitutional protections, by its inclusion in President Franklin Delano Roosevelt’s “Four Freedoms” speech,[3] and by the passage of the International Religious Freedom Act, which requires the U.S. to promote and advocate for religious freedom globally.[4] The U.S. Supreme Court has ruled in favor of religious liberty several times over the last century, such as in Cantwell v. Connecticut (1940), Sherbert v. Verner (1963), McDaniel v. Patty (1978) and Burwell v. Hobby Lobby Stores, Inc. (2014). Beyond America’s borders, religious freedom has been recognized as a global right by the Universal Declaration of Human Rights.[5] In a world in which religious freedom is increasingly under threat (as is the case for Christians in the Middle East and South Asia), it is essential that the U.S. set an example of utmost tolerance for religious freedom. And since issues of religious freedom in the U.S. today increasingly concern LGBT+ rights, we must pursue a centrist path that values both of these important principles and ensures their future.

We can start by distinguishing among the various actions which some describe under the catch-all term of “homophobic discrimination.” I divide these actions into four categories: discrimination against individuals based on their sexual identity (Category 1), discrimination against couples based on the nature of their relationship (Category 2), refusal to service rituals and events such as same-sex marriages (Category 3), and refusal to engage in speech endorsing such rituals and events (Category 4). Although each of these actions is technically a case of “discrimination”, in the sense of “the act of making or perceiving a difference”,[6] the term “discrimination” is contested as an appropriate label for Category 3 and Category 4, since those actions might be influenced by religious conviction rather than prejudice, prejudice being a necessary condition for discrimination in the other sense of the word: “prejudiced or prejudicial outlook, action, or treatment.”[7] For the purposes of this article, I use the term “discrimination” in the sense of “making or perceiving a difference” to describe all four categories.

These categories can best be understood by examples. Category 1 includes cases such as a restaurant owner refusing to serve dinner to a gay man. Category 2 includes cases in which a restaurant owner would normally serve a gay man, but refuses to serve a same-sex couple. Category 3 includes cases in which a caterer would normally serve dinner to LGBT+ individuals and same-sex couples but refuses to cater food for a same-sex wedding due to the caterer’s religious convictions. Category 4 includes cases in which an individual refuses to design a cake or write a poem for a same-sex wedding, as these actions would involve endorsing a message which violates the individual’s religious convictions. Category 4 differs from Category 3 because it involves both freedom of religion and freedom of speech, whereas Category 3 only involves freedom of religion. The Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission is perhaps the most well-known example of Category 4 discrimination.

Each of the four categories has different implications for religious freedom and LGBT+ rights. Category 1 and 2 are the most harmful for LGBT+ rights, while having little significance for religious freedom. In contrast, Category 3 and Category 4 are deeply connected to religious freedom, while not posing an existential threat to the LGBT+ community. Category 1 discrimination is a pernicious threat to the LGBT+ community’s flourishing. To live in a world that does not outlaw Category 1 would be a living nightmare for LGBT+ individuals, a nightmare that has tragically existed for far too much of human history. Not outlawing Category 1 discrimination would mean that a gay man could live his entire life either hiding his identity from the world or being refused entry to restaurants, bars, hotels and clubs, not to mention facing discrimination in the workplace. Banning Category 1 discrimination, while leaving Category 2 discrimination legal, would do little to rectify this situation. In such a situation, a gay man would theoretically be free to openly express his identity and enter a public place without discrimination, unless he did so with his partner. If a same-sex couple lived together and frequently ate together (as mixed-sex couples often do), then they could also face discrimination on a daily basis. Hence, Category 1 and Category 2 discrimination should both be banned, as they constitute a fundamental threat to the ability of LGBT+ individuals to live an ordinary life, equal to that of their heterosexual fellow citizens.

Neither Category 1 nor Category 2 discrimination could be meaningfully defended using arguments of religious liberty. To the best of my knowledge, most religions do not prohibit serving food to persons of a particular sexual orientation. Therefore, a restaurant owner opposed on religious grounds to homosexual acts would not be violating their religious beliefs by providing food to a same-sex couple or a homosexual individual, since the food they give is not directly used to facilitate romantic or sexual behavior that violates their religious beliefs. The same argument applies to other examples of public accommodations: bowling alleys, sports clubs, night clubs, shopping malls, barber shops, etc.

A more challenging example within Category 2 discrimination concerns hotels and beds, since a religious hotel-owner or bed-salesman could reasonably cite religious concerns about providing a same-sex couple with a hotel room or bed that could be used for sexual activity that violates their religious beliefs about complicity in sin. However, since hotel rooms are primarily used for temporary residence and since beds are primarily used for sleeping, neither has an explicitly sexual purpose. Hence religious concerns about providing hotel rooms and beds to same-sex couples should be considered too tenuous to legally permit discrimination. Thus, these forms of Category 1 and Category 2 discrimination against the LGBT+ community should also be outlawed by legislation.

Category 3 discrimination creates a different set of challenges for religious liberty and LGBT+ rights. Although Category 1 and Category 2 discrimination can create daily obstacles to the pursuit of happiness for members of the LGBT+ community, Category 3 discrimination would typically be an infrequent occurrence in the life of an LGBT+ individual, since it only involves specific rituals to which religious individuals object. These rituals are typically weddings, which usually occur only once or twice in a person’s life. Therefore, Category 3 discrimination is a less threatening and cumbersome form of discrimination than Category 1 and 2. Banning Category 3 discrimination would seriously harm religious liberty in America. The uniqueness of Category 3 compared to Categories 1 and 2 is exemplified by an op-ed penned by Vice President Mike Pence, then Governor of Indiana, about Indiana’s Religious Freedom Restoration Act.[8] As Pence notes, the bill demands that the law apply strict scrutiny to actions that violate religious liberty, yet it does not permit discrimination against same-sex couples in restaurants or other public places. Although serving food or providing a hotel room to a same-sex couple is not a violation of most people’s religious beliefs, participation in a same-sex wedding could reasonably violate someone’s religious beliefs, since many religions – including Christianity, Islam, Orthodox Judaism, and the Baha’i Faith – hold that marriage is between a man and a woman, and that homosexual acts are sinful: complicity in them is complicity in sin.

Several Christian bakers and florists – such as Jack Phillips of Masterpiece Cakeshop – have cited their Christian faith’s stance on marriage as a reason they oppose servicing same-sex weddings. If a Christian believes that their participation in a same-sex wedding transgresses God’s law and makes them complicit in sin, their being compelled by the state to service a same-sex wedding would be a violation of their freedom of religion and freedom of conscience. Outside of Christianity, Americans of other religions have also expressed concern. For example, the Muslim scholar and activist Ismail Royer has argued that

The Masterpiece Cakeshop case should be of great concern to American Muslims. After all, mainstream Islam teaches that homosexual acts are sinful, and one can easily imagine scenarios in which Muslim restaurant owners would balk at supporting the celebration of a same-sex wedding, just as they might hesitate for religious reasons to cater a party with pork or alcohol. As the Quran admonishes: “Do not help one another in sin and transgression: and fear God” (Quran 5:2).[9]

As Royer shows, one does not need to be a Christian to see how recent religious liberty cases have important implications for Americans of other faiths.

The above arguments about Category 3 apply similarly to Category 4 discrimination. Since Category 4 discrimination only applies to the refusal to endorse certain rituals, such as same-sex weddings, it would also be an infrequent occurrence in the life of an LGBT+ individual. In fact, since it only involves refusals to service same-sex weddings in ways where speech and expression are involved – for example, writing a poem, making a painting, or designing an artistic wedding cake – it would be an even less burdensome form of discrimination for the LGBT+ community than Category 3 discrimination. Banning Category 4 discrimination, like banning Category 3 discrimination, would involve state compulsion for participation in certain rituals. Indeed, banning Category 4 would be even more harmful than banning Category 3, as such a ban would threaten not just one, but two constitutionally protected freedoms: freedom of religion and freedom of speech.

While many Americans may see parallels between discrimination on the basis of race during the Jim Crow-era and discrimination on the basis of sexual orientation, these parallels are only accurate when comparing Jim Crow-era discrimination to Category 1 and Category 2 discrimination, and not to Category 3 and 4 discrimination. Category 1 and 2 involve refusing any contact with the LGBT+ community, similar to how businesses operating in the Jim Crow South would refuse any contact with African-Americans. This kind of blanket discrimination is very different from the conduct of a Christian baker who happily bakes cakes for homosexual customers, but rejects requests to bake cakes for same-sex weddings. As Jack Phillips, the baker in the Masterpiece Cakeshop case, said, “I don’t discriminate against anybody – I serve everybody that comes in my shop … [but] I don’t create cakes for every message that people ask me to create.”[10]

Despite attempts to characterize the Masterpiece Cakeshop case as one of Jim Crow-style discrimination against all people of a certain protected class, the facts of the case clearly show that it revolved around refusing a specific request to endorse a certain message.[11] Similarly, in the Arlene’s Flowers case the plaintiffs have themselves affirmed that the defendant, Barronelle Stutzman, sold them flowers for several years, refusing only to provide floral arrangements for their same-sex wedding.[12] This distinction between Jim Crow-style discrimination and the refusal to provide services for same-sex weddings has been noted by philosophers Ryan T. Anderson and Sherif Girgis, who write,

Jim Crow was about … avoiding contact on socially equal terms with certain patrons, by refusing them any service. Today’s complicity claims are about denying certain requests - whoever comes to make them - while avoiding contact with no one. They are not about doctors’ refusals to serve women, or florists’ refusals to serve gay people, but about refusals to perform abortions or celebrate weddings.[13] (emphasis in the original)

Hence, an accurate analogy cannot be drawn between the racial discrimination of the Jim Crow era and Category 3 and 4 discrimination.

We can conclude from this analysis that a society that wishes to protect the rights of the LGBT+ community and the right to religious freedom must outlaw Category 1 and Category 2 discrimination, while simultaneously defending the legal right to practice Category 3 and Category 4 “discrimination.” While many people can differ on whether Category 3 and Category 4 discrimination are morally correct actions, a society that values freedom of speech and freedom of religion must legally permit them. Although I myself am a non-Christian and a strong supporter of same-sex marriage who would be happy to bake a cake for a same-sex wedding if I had any talent in the art of cake-baking, I recognize that it would be a gross contravention of religious liberty for the state to force someone to service a same-sex wedding in violation of their religious beliefs and conscience.

Both the abolition of Categories 1 and 2 and the legalization of Categories 3 and 4 requires concrete political and legal action. To end Categories 1 and 2 discrimination, we must amend the 1964 Civil Rights Act. Adding “sexual orientation” and “gender identity” as protected classes to the Civil Rights Act would prevent future cases of housing, workplace, and public accommodations discrimination against the LGBT+ community. While several states have already passed legislation outlawing discrimination against the LGBT+ community, this type of legislation is desperately needed at the federal level. Any amendments to the Civil Rights Act should clarify that exemptions will be made when such discrimination is against a particular ritual (such as a same-sex wedding) rather than discrimination against a person or couple based on their sexual orientation.

Additionally, the United States Supreme Court should continue to rule in ways that protect religious liberty. Masterpiece Cakeshop v. Colorado Civil Rights Commission – a case of Category 4, involving both freedom of religion and speech – was correctly decided by a 7-2 majority in favor of Jack Phillips’ Masterpiece Cakeshop, in a major victory for religious liberty. However, that ruling was particularly narrow – it rested largely on evidence that the Colorado Civil Rights Commission did not show religious neutrality toward Mr. Phillips – and the case involved Category 4, not Category 3, discrimination. Hence, its verdict may not extend to other religious liberty cases. In the case, Mr. Phillips alleged that his constitutional right to free speech was abridged by the Colorado Civil Rights Commission’s mandate for him to bake the wedding cake featuring an artistic design by him celebrating the wedding. During the case, some of the Supreme Court justices questioned whether free speech would have been a factor had the plaintiff been some other professional such as a chef, hair stylist, makeup artist or jeweler. While the Supreme Court ultimately ruled in favor of legally permitting Category 4 discrimination in this case, it did not take a stance on the right to engage in Category 3 discrimination. Since future cases may deal with Category 3 (involving only freedom of religion, not also freedom of speech), it is essential that the Supreme Court judge these cases by affirming the right to religious freedom.

I have argued for legally prohibiting Category 1 and 2 discrimination and legally permitting Category 3 and 4 discrimination. Such changes will face significant roadblocks from both sides of the political spectrum. Many on the left will refuse to legally permit Category 3 and 4 discrimination, while some on the right may resist attempts to ban Category 1 and Category 2 discrimination. However, a pragmatic political compromise between the two sides must be achieved. This compromise will not fully satisfy either side, and will probably not provide total clarity for every case. Future cases may defy easy classification within any of the four categories. For example, the question of whether religious adoption agencies can discriminate against couples based on their religion or sexual orientation will need to be tackled independently from the framework suggested above. Nevertheless, we must persevere in establishing an even-handed compromise which protects two of the most important principles of our society: equality for the LGBT+ community and freedom of religion.

[1] Liam Stack, “The Challenges that Remain for L.G.B.T. People After Marriage Ruling,” The New York Times, June 30, 2016.

[2] Dhruv Khullar, M.D., “Stigma Against Gay People Can Be Deadly,” The New York Times, October 9, 2018.

[3] Franklin Delano Roosevelt, “Four Freedoms,” January 6, 1941.

[4] Public Law 105-292, International Religious Freedom Act of 1998.

[5] UN General Assembly, “Universal Declaration of Human Rights,” 217 (III) A (Paris, 1948).

[6] “discrimination,” Merriam-Webster.com Dictionary, Merriam-Webster, 2019.

[7] Ibid.

[8] Mike Pence, “Ensuring Religious Freedom in Indiana,” The Wall Street Journal, March 31, 2015.

[9] Ismail Royer, “American Muslims, Lot’s Wife, and the Christian Baker,” Public Discourse, November 27, 2017.

[10] Adam Edelman, “Baker who refused to make cake for gay wedding: ‘I don't discriminate’,” NBC News, June 5, 2018.

[11] David French, “Stop Misrepresenting Masterpiece Cakeshop,” National Review, November 30, 2017.

[12] Curt Freed and Robert Ingersoll, “Why we sued our florist friend: The Arlene’s Flowers story,” Winona Daily News, November 16, 2015.

[13] John Corvino, Ryan T. Anderson, and Sherif Girgis, Debating Religious Liberty and Discrimination (Oxford: Oxford University Press, 2017), 191.

Hormazd Godrej is a coterminal master’s student in statistics at Stanford. He previously studied biology as an undergraduate at Stanford (class of 2018). He practices Zoroastrianism and is ordained as a Zoroastrian priest, and he is interested in issues concerning religion, politics and the intersection of the two.